Non-public fairness (PE) buyouts are intricate monetary maneuvers, typically shrouded in complexity. By using tiered acquisition buildings and strategic automobiles, PE buyers can unlock worth whereas safeguarding investments. This text explores the nuances of those frameworks, from the position of acquisition automobiles to jurisdictional intricacies and the rise of offshore registrations. It’s the first in a three-part collection.
When PE buyers purchase corporations in a buyout, they usually use newly shaped acquisition automobiles to take action, reasonably than immediately buying the working corporations. These automobiles –- additionally known as holding corporations, or particular function automobiles (SPVs) — are created for the aim of the buyout and haven’t traded previous to the transaction closing.
The variety of acquisition automobiles that are created can range and can rely upon the complexity of the construction of the buyout and the jurisdictions concerned. Determine 1 reveals what a typical three-tiered acquisition construction might appear like.
Determine 1: Tiered acquisition construction
On this instance, Topco, Midco, and Bidco are automobiles that are created to facilitate the buyout of the working firm. A PE fund, fairly often alongside the goal agency’s administration workforce, make investments into the newly created Topco acquisition car. This car lends the cash into the Midco car, which borrows some quantity of debt — usually shareholder debt from the PE fund or junior debt from an exterior supplier — and lends this, plus the cash from the Topco car, into the Bidco car. Lastly, the Bidco car borrows some quantity of exterior senior debt and makes use of its whole amount of cash to purchase out all debtholders and shareholders of the working firm.[1]
Via this tiered construction, as a result of the senior lender lends to the Bidco car and to not the Topco car, the senior lender has direct rights in opposition to the entity which owns the working firm, and due to this fact the belongings of the goal group. This construction ensures that the senior lender’s debt will not be structurally subordinated to junior debtholders and fairness holders. It offers the senior lender prior declare to the underlying belongings of the goal firm. Exterior senior debt suppliers in buyouts, similar to banks, will typically favor this structural subordination.
The variety of completely different securities that are issued to finance the transaction and the complexity of the buyout are each essential elements when forming a buyout construction. For instance, in buy-and-build offers, the place PE buyers purchase one platform firm after which bolt-on different targets to the platform, these acquisition buildings can change into extra complicated.
Variations in jurisdictions additionally play an essential position in figuring out the transaction construction. For instance, within the US Chapter 11 chapter legal guidelines provide sturdy safety for junior lenders, so inter-creditor agreements and contractual provisions might suffice. The sturdy protections additionally imply there’s much less want for the creation of tiered acquisition automobiles as there could also be in the UK or European jurisdictions.
Certainly, there might solely be two automobiles in a US buyout construction: one for fairness holders and one other for all debtholders. All debt devices used to finance the transaction could also be loaned right into a single entity, the place there are contractual provisions and inter-creditor preparations that obtain the required structural subordination, in the identical approach that UK and European buyouts do by means of the layering of various acquisition automobiles. However, extra complicated US buyouts and multi-jurisdictional transactions might contain extra elaborate buildings.
It’s also price understanding the registration of acquisition automobiles in offshore jurisdictions – a preferred follow in the UK lately, pushed largely to keep away from withholding tax.[2] Many PE buyers buying UK corporations – whether or not they’re based mostly in the UK, the US, or elsewhere — have created acquisition automobiles registered in offshore jurisdictions. Common offshore jurisdictions embody the Channel Islands, Luxembourg, and the Cayman Islands. Other than tax-related causes, registering these entities offshore may present PE acquirers with higher flexibility in receiving dividends from their portfolio corporations. For instance, distributions below Jersey or Guernsey regulation (within the Channel Islands) might be made with out requiring distributable earnings to be out there.
In a current analysis paper, I doc a substantial rise in the usage of offshore automobiles in buyout transactions in the UK. In 2000, solely 5% of buyouts concerned an offshore final holding entity, in comparison with greater than 25% of offers in 2022 (see Determine 2). It seems to be notably frequent in bigger buyout transactions and in buyouts involving PE corporations who’re headquartered abroad. On condition that when the last word holding entity is registered offshore its monetary accounts aren’t publicly accessible (not like when the entity is registered in the UK), this highlights an essential decline within the transparency of PE buyouts in the UK over the past twenty years.
Determine 2.
Key Takeaways:
- Acquisition Autos as Important Instruments: Non-public fairness buyouts generally depend on tiered acquisition buildings, with automobiles like Topco, Midco, and Bidco taking part in important roles in managing investments and money owed.
- Structural Subordination Advantages: The layered construction ensures that senior debt suppliers retain precedence over junior lenders and fairness holders, safeguarding their claims in opposition to the working firm’s belongings.
- Jurisdictional Variations Matter: Variations in legal guidelines, similar to Chapter 11 chapter protections in the US, affect the complexity of acquisition buildings. Stronger chapter legal guidelines might cut back the necessity for a number of automobiles.
- Offshore Flexibility: Registering acquisition automobiles in offshore jurisdictions just like the Channel Islands or Luxembourg affords tax benefits and operational flexibility, notably for dividend distributions. This has change into an more and more in style follow in the UK lately.
- Complexity Grows with Technique: Purchase-and-build offers and multi-jurisdictional transactions add layers of complexity, making structuring essential for efficient administration and danger mitigation.
By understanding these parts, stakeholders can navigate the intricate world of personal fairness buyouts with confidence and precision.
In my subsequent put up, I’ll cowl the consolidation of PE firm portfolio accounts.
[1] These acquisition automobiles might be referred to as something. Topco, Midco, and Bidco have historically been frequent in the UK and are used right here for illustrative functions.
[2] This doesn’t apply to home US transactions.
